Disciplinary hearing witness statements

There is often confusion about disciplinary hearing witness statements. What are they? When should they be used? Are they a requirement or would alternatives be acceptable? Are people who provide disciplinary hearing witness statements entitled to anonymity? This blog will answer all those questions.

What are disciplinary hearing witness statements?

There is often disagreement regarding what has happened, particularly when things go wrong. Disciplinary hearing witness statements are documents which set out a person’s view of what happened when.  Such statements are simply another piece of evidence for the organisation to take into account during the disciplinary process. As a witness statement is essentially a written version of events it is common for one witness statement to contradict another.

People may well think of witness statements as material which is used during a disciplinary hearing. It is the case that they are used at that stage, but they should be produced and considered at an earlier stage than that, such as the investigation phase, to help decision makers determine whether the matter should progress to a disciplinary hearing or not.

Those under investigation should be given the opportunity to provide a witness statement too, as it is another opportunity for the person to present their version of events.

When a decision is taken to progress the matter to a disciplinary hearing, and all the evidence has been assembled, it is important that those who are accused of wrongdoing are given access to all relevant information as soon as possible (a reasonable amount of time before the hearing in order to properly prepare).

When should disciplinary hearing witness statements be used and how are they useful?

Witness statements are likely to be used at various stages of the disciplinary process. For example, at the investigation phase and at the disciplinary hearing itself. Witness statements could also be used in a similar way in relation to grievances. Such witness statements have several purposes. The main uses of disciplinary hearing witness statements are:

1. To capture all the relevant information from those involved.

It is important that those responsible for undertaking a disciplinary investigation gather all relevant evidence. Part of this task is recording the various versions of events from witnesses. It is not for the investigator to decide who is to blame and what the outcome should be. Those are matters to be decided at a disciplinary hearing. Those undertaking a disciplinary investigation should only gather information, and then decide whether the matter should progress to a disciplinary hearing.

 Requesting witness statements, as part of a disciplinary investigation, can be extremely useful as the statements set out in writing what everyone’s position is. Having accounts in writing also reduces the likelihood of someone changing their story later, particularly if the statement has been signed.

2. To enable the individual to view all evidence, to challenge evidence and witnesses etc.

The ACAS code of practice says the following in relation to the disclosure of material ‘It would normally be appropriate to provide copies of any written evidence, which may include any witness statements…’

It is essential that anyone accused of wrongdoing is able to view all the evidence, both good and bad, to enable them to be able to put their case at the disciplinary hearing. For example, the witness statements will reveal details, and may well enable the person to plan what questions they will ask witnesses etc.

For a general overview of how to be successful at a disciplinary hearing (whether you are accused of wrongdoing or you are responsible for running the disciplinary hearing on behalf of your organisation) click on the link.

3. To assist all concerned in the disciplinary process by providing some clarity

It can be a daunting task to establish who said what and when. It can be time consuming to piece together various witness evidence. Perhaps, this evidence is in various sources such as emails, meeting minutes etc. 

In contrast, using witness statements is a potential way of capturing all relevant issues in one document. This approach means that the material is easier for everyone to locate and refer to.

Are witness statements a requirement in the context of a disciplinary process?

The answer to the question ‘are witness statements a requirement in the context of a disciplinary process? Is both yes and no.

 Yes, as referred to above, it is important that an organisation gathers all relevant evidence and that this material is given to the individual, so that it is possible for them to properly put their case, but no there is not a requirement to produce the evidence in the form of a witness statement. For example, many organisations may be unaware of how witness statements could be used as part of a disciplinary process or how to go about it. In such circumstances, the evidence may well be provided in other formats such as interview notes etc. The central question is therefore ‘has all the evidence (both supportive and otherwise) been provided to the individual under investigation?’

Are people who provide disciplinary hearing witness statements entitled to anonymity?

There are often strong feelings on this particular issue. After all, an organisation may well need information from witnesses in order to decide whether a disciplinary hearing should take place or not. However, witnesses may not want to get involved, particularly if they are ultimately required to attend the disciplinary hearing, and be asked questions by the person accused of wrongdoing. An organisation may feel that a way of tackling that problem is to provide anonymity to witnesses. If such an approach is being considered, advice may well be helpful as there is much to consider before making such a decision.

Yes, there is a need for an organisation to ensure that all information is treated appropriately. However, remember what was said earlier: ‘It would normally be appropriate to provide copies of any written evidence, which may include any witness statements…’ If names, or other information, are obscured would it still be possible for the person to put their case? If the person did not know who has said what, is it still possible to ask the necessary questions at the disciplinary hearing? What is appropriate will depend on the individual circumstances, but an organisation should always take steps to ensure the process is undertaken in a way that is fair.  

Plotkin & Chandler works exclusively in the areas of HR and employment law. If you are an organisation and would like HR consultancy and training on the topic of disciplinary investigation and witness statements, or on running a disciplinary hearing, we would be delighted to hear from you.

If you are under investigation, you are facing a disciplinary hearing or you have recently been dismissed and feel the decision was unfair, we can help.

To discuss your requirements, and the ways in which we can help, call us on 020 3923 8616 or email us at info@plotkinandchandler.com